{concurring.) I concur in the views expressed in the opinion of tile presiding justice, and in the conclusion reached that the plaintiffs cannot recover in this action anything more than the amount of the judgment entered upon the verdict directed on the trial. There are several obstacles in the way of a further recovery on any of the causes of action set forth in the *812complaint, one of them being the final certificate of the engineer given in accordance with the requirements of the contract, and by which certificate the plaintiffs were necessarily bound; for there is nothing in the ease, as I read it, that impeaches such certificate, or would permit the court to ignore or disregard it. When the contract was entered into, it was in the form and contained stipulations adopted by the aqueduct commissioners, not only under the authority, but by the peremptory command, of the act creating the commission. Bids were invited upon that contract, and the plaintiffs must have known all its terms, conditions, and provisions when they entered upon the obligations they assumed under it. There was neither fraud nor any other legal ground for attacking the final certificate. It was made by the contract conclusive evidence as a final estimate, founded on actual measurements, and an actual ascertainment of the work done, for which the plaintiffs were entitled to final payment from the city; and, although it may have been made upon a different basis of computation from that which entered into the intermediate and provisional certificates, yet it seems to have been honestly made, in accordance with the requirements of the contract in that regard; and as making it was a •condition precedent to the right of the plaintiffs to receive final payment, and as the amount fixed thereby was to be the measure of ultimate liability, it stands as a barrier to any further recovery than that above referred to. So far as the facts set forth in various causes of action asserted in the complaint are concerned, it seems to me that, notwithstanding the theory of liability predicated of them, all claims connected therewith come'under the contract itself, and that in their nature, as considered with respect to the terms of the contract and the provision of the statute as to liability of the city, none of them can be enforced as claims arising extrinsic thereof. There, however, is one cause of action in respect of which a serious argument has been made, that the city is liable because of mistakes of the engineers in giving erroneous lines and levels of parts of the contract work, whereby that work was largely increased, and a much greater expenditure caused to the contractors than would have been necessitated had those erroneous lines and levels not been given. The claim is made that the city is liable for these mistakes of the engineers, for the reason that those who gave the instructions were the agents and servants or officers of the city, and the latter is bound by their acts, and is responsible to the plaintiffs as in an action-for damages for negligence. At the trial the learned judge discarded this view, and held the city was not liable. The authorities he cited in the opinion delivered by him in disposing of the case at the circuit sustain his ruling, and, upon the general principle relating to the liability of a municipal corporation for the negligence or wrongful acts of its servants or officers, I think, in view of the peculiar attitude in which the city stood to the subject-matter of the contract and to the aqueduct commissioners and their employes, the ruling was right. We have not been referred by the appellants’ counsel to any adjudicated case or decision at variance with the views expressed on this subject by the learned judge at circuit, but we suppose they would rely upon People v. Civil Service, etc., Board, 41 Hun, 286, as an authority opposed to the ruling under consideration. That case was 'decided by this court, and was affirmed by the court of appeals. 103 N. Y. 657. It declared the status of the aqueduct commissioners and their employes as to the city, and distinctly held that they were agents and servants of the city, within the meaning of the civil service act, and that this was so because the city was bound by the contracts of the commissioners. But it really decided nothing more than that. The court did not pretend to pass upon the questions of what contracts might be made by the commissioners, or the liability of the city for wrongful acts of the employes of the commissioners connected with work done under contracts. Even if the commissioners and employes were servants of the city, they were not so for ail purposes of a general character.
*813The commissioners were limited by the statute, and their engineers and other employes had specific .duties to discharge, and with the performance thereof the municipal authorities could not interfere. Although the work, when completed, would be for the benefit of the city, the commissioners were to act as an independent body. The city had no authority to contract for. meddle with, or do anything whatever connected with the work. It could not compel performance or supervise the acts either of the contractors or the commissioners; it could not appoint or remove any one employed by the commissioners; it could not hold the contractors or the engineers to any accountability during the progress of the work. Interposed between it and the contractors was this self-governing, distinct, and separate body, with limited powers, and with no right to incur any liability for the defendant exceeding that, or outside of that, provided for by contract. As said before, I am of the opinion that whatever claim the plaintiffs may have for work done or expense incurred by reason of alleged mistakes of engineers is altogether one under the contract. That the plaintiffs are entitled to compensation under the contract, and according to the rates established thereby, for all work ordered by the engineers in execution of the contract, whether on mistaken or correct lines and levels, may be conceded. That is a very different thing from a liability arising outside the contract. All the orders and directions of the engineers were given in prosecuting the work under the contract, and in the attempted and intended execution of the plans (originalor modified) and specifications, and, if we are correct in that statement, it would seem to follow that the provisions of section 30 of the contract preclude a recovery on the cause of action referred to.